it is an undisputed fact that Jai Prakash alone at the knife point had taken away the prosecutrix across a distance of more than 15 km and it is only after he reached Gulab Nagar that he met the appellant. Except providing a space and cot and helping the accused in wrongfully detaining the prosecutrix, no further act or common intention is attributable. There is no evidence 36 that there was a common concert or common intention or meeting of minds prior to commission of the offence between the two accused. For the reasons afore-recorded, we partially accept the present appeal. The judgment of the trial court convicting the accused under Section 376(2)(g) of the IPC is set aside and he is acquitted of the said charge. However, his conviction under Section 368 of the IPC and the sentence awarded by the High Court is maintained. Therefore, the accused shall undergo rigorous imprisonment for five years with fine of ` 37 5000/-, in default of payment of fine to undergo rigorous imprisonment for four months.

                                               REPORTABLE


                    IN THE SUPREME COURT OF INDIA


          CRIMINAL APPELLATE JURISDICTION


           CRIMINAL APPEAL NO. 421 OF 2007





OM PRAKASH                                   ... Appellant





                          Versus


STATE OF HARYANA                              ... Respondents





                      J U D G M E N T





Swatanter Kumar J.



                             1


      The two accused Om Prakash (hereinafter referred as `the



appellant')   and   Jai   Prakash   were   committed   to   the   Court   of



Additional   Sessions   Judge   at   Jagadhri   vide   order   dated   30th



September, 1994 to face trial in the case of Jai Prakash under



Sections   363,   366   and   376(2)(g)   of   the   Indian   Penal   Code,





1860   (in   short   the   `IPC')   and   in   the   case   of   appellant   under



Sections  368   and   376(2)(g)   IPC.     Both   these   accused  pleaded



not guilty to the charge and faced trial.  The prosecution -



examined as many as nine witnesses to bring home the   guilt



of the accused in response to the questions posed by the Court



disclosing   incriminating   evidence   against   the   accused   under



                                        2


Section 313  of the Code of Criminal Procedure, 1973 (in short



the 'Code').  The appellant denied the incident and stated that



he had never known either Jai Prakash or the prosecutrix.  Jai



Prakash took the stand that he used to visit the house of one



Bhagwan Dass and there was enmity between Bhagwan Dass



and the father of the prosecutrix.  Fufa of the prosecutrix, Jeet





Ram,   was   posted   at   the   Yamuna   Nagar   police   station   and



because of personal animosity, he has been falsely implicated.



The  trial   court  vide  a  detailed   judgment   dated  30th   January,



1996   recorded   a   finding   that   all   the   essential   ingredients



constituting offence for which the accused were charged were



fully   proved   and   subsequently   convicted   both   the   accused   of



                                     3


the   said   offences.     After   hearing   them   on   the   quantum   of



sentence   and   noticing   the   antecedents   and   the   family



background of the accused, the trial court took a lenient view



and sentenced Jai Prakash to undergo rigorous imprisonment



for five years under Section 363 of the IPC and to pay a fine of



-





Rs.250/- and in default of payment of fine, to undergo further



rigorous   imprisonment   for   four   months.     The   Court   also



convicted him under Section 376 (2)(g) IPC with a sentence of



rigorous imprisonment for ten years and fine of Rs.500/- and



in   default   of   payment   of   fine   to   undergo   further   rigorous




                                     4


imprisonment   for   six   months.     However,   the   Court   awarded



sentence   of   five   years   rigorous   imprisonment   to   appellant



under Section 368 IPC and a fine of Rs.250/- and in default of



payment of fine to further undergo rigorous imprisonment for



four months and/or for the offence under Section 376(2)(g) of



the IPC awarded him R.I. for seven years and fine of Rs.500/-





and  to further  undergo,  in the  event  of  default  of payment  of



fine,   four   months   R.I.     Dissatisfied   with   the   judgment   of   the



trial   court,   Jai   Prakash   and   the   appellant   preferred   separate



appeals   before   the   High   Court   of   Punjab   and   Haryana   at



Chandigarh.     The   same   were   dismissed   and   the   judgment   of



conviction and order of sentence as awarded by the trial court,



                                       5


was upheld by the High Court vide its well reasoned judgment



dated   9th  August,   2005.     Against   this   judgment   of   the   High



Court,   the   appellant   alone   has   filed   the   present   appeal.



      Learned   counsel   appearing   for   the   appellant,   while



challenging the judgment of the High Court before this Court,



has   contended   that   there   was   an   inordinate   delay   in   lodging





the FIR, the appellant had been falsely implicated in the case



and   he   had   no   role   to   play   whatsoever   either   in   the   alleged



kidnapping   of  the  prosecutrix  or  in  raping  her.     According   to



him,   even   if   the   entire   evidence   is   read   in   its   correct



perspective,   the   appellant   would   be   entitled   to   the   benefit   of



doubt and consequent acquittal.  It is also contended that the



                                        6


basic ingredients of Section 376 (2)(g) IPC are not satisfied in



the present case.



          In order to examine the merit of these contentions, it will



be   important   for   us   to   notice   the   case   of   the   prosecution   in



brief.



          Complainant   Ram   Pal  (PW-6)   is   a   resident   of   House   No.





115   in   Vijay   Colony   and   is   a   labourer   in   paper   mill,



Yamunanagar.  He has five daughters and one son aged about



three years.   On the evening of 2nd  January, 1994, one of his



daughters   the   prosecutrix,   aged   about   14   years,   went   out   of



the   house   to   throw   rubbish   but   she   did   not   return.     The



complainant searched for her but she could not be traced.  On



                                         7


3rd    January,   1994,   his   son-in-law   -   Bali   Ram   (PW-7)   came



from   Village   Topra   and   told   him   that   Jai   Prakash   had   taken



the   prosecutrix   on   his   cycle   the   previous   night   and   then



dropped her to Bali Ram's House that morning. After receiving



this   information   he   brought   his   daughter   from   the   village



Topra;   she   did   not   tell   anything   to   the   complainant   at   that





time but after 2-3 days, she narrated the entire incident.  She



informed   that   she   had   been   taken   away   by   Jai   Prakash-



accused   at   knife   point   and   he   raped   her   in   the   house   of   the



appellant   in   his   presence.   Ram   Pal   (PW6),   father   of   the



prosecutrix   lodged   the   report   with   the   police   on   6th  January,



1994.     Thereafter,   as   already   noticed,   Jai   Prakash   and   the



                                         8


appellant were tried by the court of competent jurisdiction and



convicted.     In   terms   of   the   statement   of   the   prosecutrix,   Jai



Prakash,   accused   threatened   to   kill   her   if   she   did   not



accompany him.   She was taken on his cycle to Gulab Nagar



after crossing the railway line.  He took her to the house of the



appellant and talked secretly with him to arrange space and a





cot.     Both   the   accused   slept   in   the   same   room   in   which   she



was raped.  It has also come in evidence that Jai Prakash had



intercourse   with   her   twice   after   threatening   her   with   a   knife



and the appellant did not come to her rescue despite her cries



for help.   The appellant slept in that very room near the door



to   guard   against   entry   of   any   other   person   as   well   as   to



                                        9


prevent her from going out.  Jai Prakash threatened to kill the



prosecutrix with his knife if she raised alarm and at  about 3-4



A.M.,   Jai   Prakash-accused   took   her   away   to   village   Topra   on



cycle   and   left   her   at   the   house   of   her   brother   in   law   namely



Bali Ram.



       Dr. V.K. Sharma (PW8) had stated before the Court that





he   had   examined   Jai   Prakash   on   17th  January,   1994   and   in



his opinion, he was capable of performing intercourse and this



fact is proved by his report (Ex.PG).


             Dr.   Neeru   Ohri   (PW2)   had   medically   examined   the



prosecutrix on 6th  January, 1994 and had opined that the girl



had been subjected to coitus.  Besides medical experts and the



                                        10


investigating   officer,   there   are   three   material   witnesses-the



prosecutrix   (PW5),   Ram   Pal   (PW6)   and   Bali   Ram   (PW7).     All



these   witnesses   have   stated   what   they   were   told   by   the



prosecutrix.  Thus, the basic foundation for either acquittal or



holding   the   accused   guilty   primarily   depends   upon   the



statement of these witnesses.   According to her, the appellant





met Jai Prakash after he had taken her away at a knife point



to Gulab  Nagar and there they had talked for some time and



then   the   appellant   had   provided   a   cot   and   space   to   Jai



Prakash.     It   is   not   the   statement   of   the   prosecutrix   that   she



either over heard or was even certain as to what both of them



discussed   within  that  short  duration.     She   has  clearly   stated



                                        11


that   the   appellant   did   not   directly   or   indirectly   participate   in



the   act   of   rape.     We   are   not   concerned   with   the   offence



committed by Jai Prakash in the present appeal.  Statement of



PW6 is primarily based upon what was narrated to him by the



prosecutrix so is the statement of PW7.  They have no personal



knowledge   about   the   event   and   role,   if   any,   played   by   the





appellant.     The   entire   material   evidence   would   relate   to   the



medical   evidence   of   Jai   Prakash   for   performing   the   sexual



intercourse and that of the prosecutrix that she was subjected



to sexual inter course.   It is in no way even suggestive of the



role,   if   any,   which   has   been   played   by   the   appellant.     There



can   hardly   be   any   doubt   that   Jai   Prakash   raped   the



                                        12


prosecutrix.  As far as the appellant is concerned, according to



the   prosecutrix,   he   did   not   come   to   her   help   when   she   tried



out   to   him   and   thus   the   appellant   wrongly   ensured   her



confinement   in   the   room  where   Jai   Prakash   subjected   her   to



the assault of rape.   To put in a nutshell the prosecutrix was



threatened  at  knife point  and taken  away on the  pillion rider





on a  cycle  across  a  distance  of  15 to 20  km,   raped  and  then



dropped   to   her   brother   in   law-Bali   Ram's   house   the   next



morning.     In   this   entire   episode   no   role   is   attributed   to   the



appellant.     Even   according   to   Bali   Ram   (PW7),   Jai   Prakash



alone   came   to   drop   her   at   his   place.     In   the   words   of   the



prosecutrix " I asked Om Parkash accused to some (sic) to my



                                        13


help but he did not pay any heed.   Om Parkash accused has



slept in that very room. So that he may guard the entry  of any



other persons and so may guard my going out...."



      This  is   the   precise  role,   in  the   words   of  the   prosecutrix,



which   is   attributable   to   the   appellant.     Even   if   we   take   the



statement of the prosecutrix as gospel truth, nothing more can





be   attributed   to   the   appellant.     Of   course,   Gandhi   Prasad



(DW1), the defence witness stated that he had been a tenant in



Moti   Ram's   house   in   Gulab   Nagar   since   five   years.   His   room



was   situated   towards   the   eastern   side   of   the   house   and   Moti



Ram and his family were residing in the opposite room.   Moti



Ram   had   since   died.     The   appellant   was   stated   to   be   the



                                       14


nephew of Moti Ram but neither the owner of the house nor a



tenant.     The   appellant   was   married,   he   denied   that   any   girl



ever came to those premises.  The statement of DW1 does not



really   advance   the   case   of   the   defence   but   the   effect   of   the



matter remains that the appellant was stated to be neither the



owner   nor   tenant   of   the   premises   in   question.   Be   that   as   it





may, DW1's statement cannot be given greater weightage than



the statement of the prosecutrix. It is not even the statement



of DW 1 that he was there on that particular day.  He has only



stated   that   in   January,   1994,   he   was   in   his   room   which



obviously does not inspire confidence as it cannot be inferred



that he was staying in the room the entire month, day in and



                                        15


day   out.     His   statement   was   that   no   girl   came   to   those



premises on 2nd January, 1994.  He does not even say that for



the entire day and night of 2nd January, 1994, he was present



in the house.  For the above reasons and even otherwise, DW1



appears   to   be   an   interested   witness   being   a   friend   of   the



appellant as he is staying in the same premises and would be





interested in protecting the appellant.



            There   is   some   delay   in   lodging   the   FIR   but   that



delay   has   been   well   explained.     A   young   girl   who   has



undergone   the   trauma   of   rape   is   likely   to   be   reluctant   in



describing   those   events   to   any   body   including   her   family



members.     The   moment   she   told  her   parents,   the   report   was



                                     16


lodged   with the police  without any delay.    Once  a reasonable



explanation is rendered by the prosecution then mere delay in



lodging   of   a   first   information   report   would   not   necessarily



prove fatal to the case of the prosecution.



      The   learned   counsel   appearing   for   the   appellant   has



hardly   been   able   to   bring   to   our   notice   any   material





contradictions in the statements of the prosecution witnesses.



Every   small   discrepancy   or   minor   contradiction   which   may



erupt in the statements of a witness because of lapse of time,



keeping  in   view  the  educational  and   other   background  of  the



witness,   cannot   be   treated   as   fatal   to   the   case   of   the



prosecution.     The   court   must   examine   the   statement   in   its



                                    17


entirety,   correct   perspective   and   in   light   of   the   attendant



circumstances brought on record by the prosecution.



       The   High   Court   in   its   judgment   has   not   discussed



whether   the   ingredients   of   Section   376(2)(g)   of   the   IPC   are



satisfied   in   the   present   case.     It   will   be   useful   to   refer   the



provisions of Section 376(2) of the IPC at this stage which read





as under:



                     "376(1)         xxx              xxx

                     (2)  Whoever,-

                     (a)   being   a   police   officer

                     commits rape-

                     (i) within the limits of the police

                     station         to         which         he         is

                     appointed; or

                     (ii)   in   the   premises   of   any

                     station   house   whether   or   not



                                                18


situated  in  the  police  station  to

which he is appointed; or

(iii)   on   a   woman   in   his   custody

or   in   the   custody   of   a   police

officer subordinate to him; or

(b) being a public servant, takes

advantage of his official position

and   commits   rape   on   a   woman

in   his   custody   as   such   public

servant   or   in   the   custody   of   a

public   servant   subordinate   to





him; or

(c) being on the management or

on the staff of a jail, remand -

home   or   other   place   of   custody

established by or under any law

for the time being in force or of

a   women'   s   or   children'   s

institution   takes   advantage   of

his         official          position         and

commits   rape   on  any   inmate   of




                        19


such   jail,   remand   home,   place

or institution; or

(d) being on the management or

on the  staff  of a hospital,  takes

advantage of his official position

and   commits   rape   on   a   woman

in that hospital; or

(e)   commits   rape   on   a   woman

knowing her to be pregnant; or

(f)   commits   rape   on   a   woman

when she  is under  twelve years





of age; or

(g)   commits   gang  rape,   shall   be

punished             with          rigorous

imprisonment   for   a   term   which

shall not be less than ten years

but   which   may   be   for   life   and

shall   also   be   liable   to   fine:

Provided that the court may, for

adequate and special reasons to

be   mentioned   in   the   judgment,

impose          a          sentence         of



                     20


imprisonment              of         either

description   for   a   term   of   less

than ten years

 Explanation 1. Where a woman

is   raped   by   one   or   more   in   a

group   of   persons   acting   in

furtherance   of   their   common

intention,   each   of   the   persons

shall   be   deemed   to   have

committed gang rape within the

meaning of this sub- section.





  Explanation   2.-   "women's   or

children's institution" means an

institution,   whether   called   an

orphanage   or   a   home   for

neglected   women   or  children   or

a widows' home or by any other

name, which is established and

maintained   for   the   reception

and care of women or children.

     Explanation   3.-"   hospital"

means   the   precincts   of   the



                   21


                   hospital   and   includes   the

                   precincts   of   any   institution   for

                   the   reception   and   treatment   of

                   persons   during   convalescence

                   or   of   persons   requiring   medical

                   attention or rehabilitation."




      A   plain   reading   of   Section   376(2)(g)   with   Explanation   I



thereto shows that where a woman is raped by one or more of





a   group   of   persons   acting   in   furtherance   of   their   common



intention,   each   of   the   persons   shall   be   deemed   to   have



committed gang rape within the meaning of Section 376 (2)(g)



of the IPC.   In other words, the act of gang rape has to be in



furtherance   of   their   common   intention   before   the   deeming



fiction of law can be enforced against the accused.  This Court



                                     22


in the case of Ashok Kumar v.  State of Haryana, (2003) 2 SCC



-143   had   occasion   to   dwell   on   Explanation   1   to   Section



376(2)(g),   IPC   while   examining   whether   the   appellant   Ashok



Kumar   could   be   convicted   under   the   same   because   at   the



crucial time, he happened to be in the house of the co-accused



Anil   Kumar   in   whose   case   the   judgment   of   conviction   under





Section   376(2)(g)   had   attained   finality.   The   Court   observed



that the prosecution must adduce evidence to show that more



than one accused has acted in concert and in such an event, if



rape   had   been   committed  by   even   one   of   the   accused  all   will



be   guilty   irrespective   of   the   fact   that  she  has  not  been  raped



by   all   of   them.     Therefore,   it   may   not   be   necessary   for   the



                                        23


prosecution to adduce evidence of a completed act of rape by



each one of the accused.   The provision  embodies a  principle



of joint liability and the essence of that liability is existence of



common   intention.     That   common   intention   pre-supposes



prior   concert   as  there  must   be  meeting  of   minds,   which  may



be   determined   from   the   conduct   of   the   offenders   which   is





revealed   during   the   course   of   action.   After   examining   the



circumstances   relied   upon   by   the   prosecution   to   indicate



concert,   the   Court   in  Ashok   Kumar   (supra)  concluded   that



mere presence of the appellant could not establish that he had



shared   a   common   intention   with   the   co-accused   to   rape   the



prosecutrix.     A   similar   view   was   taken   in   the   case   of



                                    24


Bhupinder Sharma v. State of Himachal Pradesh [(2003) 8 SCC



551] in which the court held as under:




          "14.   In   cases   of   gang   rape   the   proof   of

          completed act of rape by each accused on

          the   victim   is   not   required.   The   statutory

          intention in introducing Explanation 1 in

          relation   to   Section   376(2)(g)   appears   to

          have been done with a view to  effectively





          deal   with   the   growing   menace   of   gang

          rape.   In   such   circumstances,   it   is   not

          necessary   that   the   prosecution   should

          adduce clinching proof of a completed act

          of rape by each one of the accused on the

          victim   or   on   each   one   of   the   victims

          where there are more than one in order to

          find   the   accused  guilty   of   gang  rape   and

          convict them under Section 376 IPC."





                                    25


      Another   Bench   of   this   Court   in   the   case   of  Pardeep



Kumar     v.    Union Administration,  Chandigarh, [(2006) 10 SCC



608]   after   noticing   the   judgment   of   this   Court   in   the   case   of



Ashok   Kumar   (supra),  Bhupinder   Sharma   (supra)  and  Priya



Patel     v.     State   of   M.P.  [(2006)   6   SCC   263],  while   elaborating



the   ingredients   of   the   offence   under   Section   376(2)(g)   of   the





I.P.C. stated the law as follows:




             "10.   To   bring   the   offence   of   rape   within

             the purview of Section 376(2)(g) IPC, read

             with   Explanation   1   to   this   section,   it   is

             necessary for the prosecution to prove:





                                        26


(i)   that   more   than   one   person   had   acted

in   concert   with   the   common   intention   to

commit rape on the victim;


(ii) that more that one accused had acted

in concert in commission of crime of rape

with   pre-arranged   plan,   prior   meeting   of

mind and with element of participation in

action.   Common   intention   would   be

action in concert in pre-arranged plan or





a   plan   formed   suddenly   at   the   time   of

commission   of   offence   which   is   reflected

by   the   element   of   participation   in   action

or   by   the   proof   of   the   fact   of   inaction

when the action would be necessary. The

prosecution   would   be   required   to   prove

pre-meeting   of   minds   of   the   accused

persons prior to commission of offence of





                          27


rape   by   substantial   evidence   or   by

circumstantial evidence; and


(iii)   that   in   furtherance   of   such   common

intention   one   or   more   persons   of   the

group  actually  committed offence   of  rape

on   victim   or   victims.   Prosecution   is   not

required to prove actual commission of -


rape   by   each   and   every   accused   forming





group.


11.  On  proof  of common  intention  of the

group of persons which would be of more

than   one,   to   commit   the   offence   of   rape,

actual act of rape by even one individual

forming   group,   would   fasten   the   guilt   on

other members of the group, although he

or   they   have   not   committed   rape   on   the

victim or victims.



                          28


            12.   It   is   settled   law   that   the   common

            intention   or   the   intention   of   the

            individual   concerned   in   furtherance   of

            the   common   intention   could   be   proved

            either   from   direct   evidence   or   by

            inference   from   the   acts   or   attending

            circumstances of the case and conduct of

            the   parties.   Direct   proof   of   common

            intention   is   seldom   available   and,





            therefore,   such   intention   can   only   be

            inferred         from         the         circumstances

            appearing   from   the   proved   facts   of   the

            case and the proved circumstances."





      It   must   be   noticed   that   in   the   case   of  Pardeep   Kumar



(supra),   the   Court   stated   the   above   principles   but   acquitted




                                          29


the accused. According to the statement of the prosecutrix in



that   case,   the   accused   had   reached   the   premises   after



commission   of   the   offence,   though   he   had   consumed   liquor



with the persons who had actually raped the prosecutrix.  The



Court   came   to   the   conclusion   that   there   was   no   common



intention   or  prior   concert   to   commit   the   offence   of   gang  rape





as mere presence would not be sufficient to find the appellant



guilty   by   taking   aid   of   Explanation   I.     The   present   case   is



slightly   similar   to   the   case   of  Pardeep   Kumar  (supra),   of



course, it is not in any way identical on facts.   In the case in



hand, the prosecutrix had not been gang-raped, as alleged by



the prosecution, and she had travelled all the way, i.e. nearly



                                       30


15-20   kms   on   a   cycle.     Thus,   the   intention   to   kidnap   and



commit rape or subject her to sexual assault was the intention



of  Jai  Prakash   alone.     There  was  no  prior   plan  or  meeting  of



minds   between   the   appellant   and   the   Jai   Prakash   to   either



kidnap or to rape the prosecutrix.  As per the statement of the



prosecutrix,   the   appellant   had   provided   a   room   to   both   Jai





Prakash   and   the   prosecutrix   and   remained   there   to   see   that



she   does   not   go   out   or   that   nobody   comes   in.     The   crucial



question   in   this   entire   sequence   of   events   is   whether   Jai



Prakash   told   the   appellant   that   he   had   kidnapped   the



prosecutrix or that the prosecutrix was known to him and had



accompanied   him   of   her   own   accord.     There   is   no   direct



                                       31


evidence   in   this   regard.     A   collective   reading   of   the   evidence



would   show   that   the   role   of   the   appellant   is   limited   to



wrongfully   confining   the   prosecutrix   and   not   rendering   help



when asked for.




      However,   it   would   have   been   an   entirely   different





situation   if   the   prosecutrix   had   stated   in   her   statement   that



the appellant had been told by Jai Prakash about her alleged



kidnapping   and   his   intention   to   rape   her,   during   the   short



conversation that they  are stated  to have had before entering



the   room.     It   is   clear   from   her   statement   that   she   does   not



even claim that she overheard the conversation.  Thus, it may



                                        32


not   be   possible   for   the   Court   to   draw   an   adverse   inference



against the appellant when the prosecution has not been able



to lead any definite evidence in that regard.




      In   the   case   of  Smt.   Saroj   Kumari     v.   The   State   of   U.P.



[(1973)   3   SCC   669],         this   Court   while   explaining   the





constituents of an offence under Section 368 of the IPC clearly



held   that   when   the   person   in   question   has   been   kidnapped,



the   accused   knew   that   the   said   person   had   been   kidnapped



and  the  accused  having such knowledge,  wrongfully conceals



or   confines   the   person   concerned   then  the   ingredients   of



Section   368   of   the   IPC   are   said   to   be   satisfied.       The



                                        33


prosecution   evidence   and   particularly   the   statement   of   the



prosecutrix   shows   that   the   act   of   kidnapping   with   the



intention   to   rape   and   actual   commission   of   rape   of   the



prosecutrix   were   completed   by   Jai   Prakash   himself.     The



appellant had rendered the help of providing a room but there



is   nothing   on   the   record,   including   the   statement   of   the





prosecutrix, to show that she overheard Jai Prakash telling the



appellant that he had kidnapped her and/or that the appellant



had   any  knowledge  of  the  fact  that  she   had  been   kidnapped.



The   possibility   of   the   appellant   being   informed   by   the   Jai



Prakash that she had come of her own will and had travelled a



long distance of 15-20 km without protest does not appear to



                                     34


be   unreasonable.   As   noticed,   according   to   the   prosecutrix,   it



was under threat but the prosecution was expected to produce



evidence   to   show   that   the   factum   of   kidnapping   as   well   as



intent   to   commit   a   rape   was   known   to   the   appellant   either



directly   or   at   least   by   circumstantial   evidence.     As   per   the



evidence   of   the   prosecution,   the   room   where   the   prosecutrix





was   raped   belonged   to   one   Sh.   Moti   Ram,   the   uncle   of   the



appellant   who   had   died.     Except   the   statement   of   DW1,   no



other defence had been led by the appellant to prove that he is



innocent   or   has   been   falsely   implicated.     Though   DW1   had



made a vague statement that on the date of occurrence, no girl





                                      35


had   come   to   that   room,   that   statement   cannot   be   said   to   be



truthful and it does not inspire confidence.



      Even   in   the   cases   where  the   statement   of  prosecutrix   is



accepted as truthful, it is expected of the prosecution to show



some   basic   evidence   of   common   intention   or   concert   prior   to



commission   of   the   offence.     In   the   present   case,   it   is   an





undisputed fact that Jai Prakash alone at the knife point had



taken away the prosecutrix across a distance of more than 15



km   and   it   is   only   after   he   reached   Gulab   Nagar   that   he   met



the appellant.   Except providing  a space  and cot and helping



the accused in wrongfully detaining the prosecutrix, no further



act or common intention is attributable.   There is no evidence



                                        36


that   there   was   a   common   concert   or   common   intention   or



meeting   of   minds   prior   to   commission   of   the   offence   between



the two accused.




               For the reasons afore-recorded, we partially accept



the present appeal.  The judgment of the trial court convicting





the accused under Section 376(2)(g) of the IPC is set aside and



he   is   acquitted   of   the   said   charge.     However,   his   conviction



under Section 368 of the IPC and the sentence awarded by the



High   Court   is   maintained.     Therefore,   the   accused   shall



undergo   rigorous   imprisonment   for   five   years   with   fine   of  `



                                      37


5000/-,   in   default   of   payment   of   fine   to   undergo   rigorous



imprisonment for four months.




       The appeal is accordingly dismissed.





                                          ...................................J.


                                              [Dr. B.S. Chauhan]





                                              ....................................J.

                                               [Swatanter Kumar]



New Delhi;

July 7, 2011





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